Kelly Thomas case: 3rd officer might face charge

A picture of Fullerton police officer Joseph Wolfe's trunk, including his baton, is submitted in May as evidence during a preliminary hearing for Fullerton police officer Manuel Ramos and Fullerton police officer Jay Cicinelli in April. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

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A security camera captured much of the altercation between Fullerton police officers and Kelly Thomas at the Fullerton bus depot. JOSHUA SUDOCK, THE ORANGE COUNTY REGISTER

SANTA ANA - The Orange County grand jury is scheduled to convene Wednesday to hear testimony concerning a former police officer’s role in the death of a mentally ill homeless man, the man’s defense attorney said.

If indicted, Joe Wolfe would be the third ex-Fullerton officer facing at least one charge in the death of transient Kelly Thomas.

Vicki Podberesky, an attorney representing Wolfe, said she was notified late last week by officials with the Orange County District Attorney’s Office that they will present evidence to the grand jury.

“I’ve always thought he should have been charged,” said Kelly’s father, Ron Thomas.

Thomas died July 10, 2011, five days after confrontation with six Fullerton officers at the Fullerton Transportation Center. The incident was captured on a city-owned surveillance video.

If indicted, Wolfe could stand trial with former officer Manuel Ramos, charged by with second-degree murder and involuntary manslaughter, and former Cpl. Jay Cicinelli, charged with involuntary manslaughter and excessive force. Those charges were filed by the District Attorney’s Office. Attorneys for the pair have said force was justified.

An indictment eliminates the need for a preliminary hearing to test evidence and speeds the case along to a court trial.

“Usually, a grand jury does what the D.A. wants them to do,” Podberesky said. “(Wolfe) is prepared, if necessary, to have his day in court.”

The attorney believes District Attorney Tony Rackauckas intends to try the three officers at the same time.

“Because we are not part of the case, we have very limited access (to evidence) at this point,” she said. “So, we have asked the D.A. to include exculpatory evidence that we are aware of, which includes statements from witnesses and other officers.”

Officers suspected Thomas of trying to open car doors when they approached him. After questioning Thomas about 15 minutes, the situation turned violent. Wolfe is seen on the video delivering the first blow with his baton to Thomas’ left leg and then striking him with knees and elbows.

When filing charges against Ramos and Cicinelli last September, Rackauckas said Wolfe stood several feet away and was searching Thomas’ backpack while Ramos’ was threatening Thomas.

“The evidence does not show that Officer Wolfe was aware of the physical threat made by Ramos against Thomas, which escalated the lawful detainment to an unlawful use of force,” Rackauckas said at the time. “The evidence does not show that Officer Wolfe was aware upon joining the altercation that he was assisting in the restraint of a victim who had been subjected to excessive force by Ramos. Due to the lack of evidence to show knowing participation in an unlawful act, no charges can be filed against Officer Wolfe at this time.”

Wolfe’s attorney said she is unaware of new information that would prompt Rackauckas to seek an indictment a year after prosecutors charged the first two officers.

“I hope the D.A.’s Office would not succumb to external pressure and continue to review the case in an objective way,” Podberesky said.

In November, Superior Court Judge William Froeberg will hear arguments on a defense motion to dismiss charges against Ramos and Cicinelli.

“I believe that we have solid grounds to have the case dismissed, which is going to be argued … and I expect that the case will be dismissed by the court,” said attorney John Barnett, representing Ramos.

Barnett has argued that Thomas was belligerent, profane and combative and provoked the escalation of tension by refusing to identify himself. And he contends in his dismissal motion that Thomas could "have avoided a physical altercation" by complying with Ramos' lawful commands.

Ramos, Cicinelli and Wolfe are no longer with the department.

When asked if the District Attorney's Office has a comment on any grand jury proceedings related to Wolfe, spokeswoman Farrah Emami said “we have no information to share.”

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